Executive Federalism: Forging New Federalist Constraints on the Treaty Power

Abstract

This article addresses the longstanding debate over whether federalism constrains the treaty power and challenges the view that courts may authoritatively resolve that debate. Until recently, scholars generally accepted that the treaty power operated free from federalism limits based on Justice Holmes' opinion in Missouri v. Holland. Lately, however, scholars have questioned whether Missouri remains good law. Two camps have emerged. On one side lie "nationalists" who seek to defend Missouri by invoking constitutional text, structure, history, doctrine and prudential claims. On the other side reside "new federalists" who suggest that the Court should overrule Missouri in light of: (1) adjustments to Congress' commerce power via Lopez and its progeny; and (2) changes in the subjects and substantive obligations of U.S. treaties. Despite their disagreements, both sides focus on the same subject - the Supreme Court.

This article demonstrates, however, that this judicial focus is misplaced. An examination of the Court's doctrine reveals little likelihood that it will revisit Missouri. More importantly, while the Court has chosen to disengage, the Executive has interpreted the treaty power's scope and devised its own mechanisms for accommodating federalism in U.S. treaties. To date, however, scholars have largely ignored the Executive's efforts to self-judge when and how federalism limits U.S. treaty-making-efforts that I label "Executive Federalism." But Executive Federalism has significant domestic and international ramifications. First, it requires rethinking federalism's nature by demonstrating that federalism need not function solely as a judicial or legislative safeguard for states' rights. Second, while it serves as a vehicle for Executive self-restraint, Executive Federalism still has structural implications, weakening the authority of other actors (the courts, the legislature, and even future Presidents) to voice their views on federalism in the treaty context. Third, it provides us with valuable information about how the holder of the treaty power - the Executive - conceives of its scope. Finally, Executive Federalism can affect U.S. foreign relations, preventing some treaty-making altogether, constraining U.S. negotiating positions, imposing extra costs to achieve U.S. goals, and complicating questions of U.S. compliance. In sum, Executive Federalism presents the case for re-conceptualizing the treaty power debate to recognize the Executive as an essential subject in its own right.